Ruling reopens debate on Yucca Mountain

WASHINGTON – Federal judges on Friday tossed out a regulation that allowed nuclear waste to be stored at reactors for 100 years or more and that cleared a way for the Obama administration to scrap the Yucca Mountain repository.

An appeals court said the Nuclear Regulatory Commission failed to fully study the environmental risks of long-term onsite storage when it adopted the so-called “waste confidence” rule in December 2010.

The regulation was sent back to the agency. A three-judge panel said in a unanimous ruling the NRC should perform a detailed evaluation of possible nuclear waste fires and leaks from extended storage in pools at reactor sites, or explain why one is not needed.

The waste confidence rule said highly radioactive spent fuel can be kept onsite safely for 60 years after a reactor is shut down. The NRC licenses reactors for 40 years and allows for them to be considered for a 20-year extension before they are decommissioned.

Accordingly, long rods of no longer usable but still radioactive nuclear fuel are stored in casks and in deep pools at 104 reactors.

The waste confidence rule also said a permanent repository will be available “when necessary,” which the court said caught its attention considering the unsettled state of U.S. nuclear waste policy.

“At this time there is not even a prospective site for a repository, let alone progress toward the actual construction of one,” the panel said in a 21-page ruling issued by the Court of Appeals for the District of Columbia Circuit.

Judges said the NRC failed to study what would happen if a disposal site is not ready when one becomes needed.

The court ruling may prompt new debate over Yucca Mountain, the proposed Nevada nuclear waste site, which was terminated by President Barack Obama in 2009 at the urging of Sen. Harry Reid, D-Nev.

Administration supporters and Nevada opponents of Yucca Mountain said the NRC’s judgment that nuclear waste can be kept onsite safely for at least 100 years made the controversial Nevada site expendable and created time to find an alternative.

“In my view the court took NRC to task for basically trying to administratively whitewash the administration’s termination of the Yucca repository program,” said Lake Barrett, a nuclear industry consultant and former Department of Energy deputy director of the office that managed Yucca Mountain.

“Without proper NEPA evaluations, the NRC was caught and lost this case,” Barrett said.

NEPA is the National Environmental Policy Act, which requires risk evaluations of major government decisions.

New York, New Jersey, Connecticut and Vermont sued the NRC last year over the waste rule.

Geoffrey Fettus, a senior attorney at the Natural Resources Defense Council, another plaintiff, called the ruling “a game changer.”

“This forces the Nuclear Regulatory Commission to take a hard look at the environmental consequences of producing highly radioactive nuclear waste without a long-term disposal solution,” Fettus said.

The NRC has assembled a staff to study the possibility that nuclear waste might be stored safely at plants for 200-300 years.

The court said “some or all of the problems” raised by the ruling might be addressed by that group.

Bob Halstead, executive director of the Nevada Agency for Nuclear Projects, said that “nobody is sure how significant this is or not.”

The court’s differences with the NRC may have less to do with nuclear waste and more to do about how the NEPA law is applied, he said.

“For us there is no clear impact from this decision on Yucca Mountain generally or specifically,” said Halstead, whose agency manages the state’s official opposition to the site.

Ellen Ginsburg, general counsel of the Nuclear Energy Institute, called for the NRC to act quickly to generate the additional studies identified by the court and “to reissue the rule as soon as possible.”

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760. Follow him on Twitter @STetreaultDC.